QBE Insurance (Australia) Limited v Lam
[2024] NSWPICMP 831
•6 December 2024
| DETERMINATION OF REVIEW PANEL | |
| CITATION: | QBE Insurance (Australia) Limited v Lam [2024] NSWPICMP 831 |
| CLAIMANT: | Cuc Thu Thi Lam |
| INSURER: | QBE |
| REVIEW PANEL | |
| MEMBER: | Gary Victor Patterson |
| MEDICAL ASSESSOR: | John Baker |
| MEDICAL ASSESSOR: | Gerald Chew |
| DATE OF DECISION: | 6 December 2024 |
| CATCHWORDS: | MOTOR ACCIDENTS – Motor Accident Injuries Act 2017; medical dispute as to whole person impairment; the claimant was injured in a motor accident that occurred on 25 June 2019 at Cabramatta; insured vehicle reversed at speed from a driveway and struck the claimant’s vehicle on left passenger side; claimant’s head struck the steering wheel; claimant, her husband and children were conveyed to Liverpool Hospital by ambulance; claimant began to experience back pain which worsened over the next few days; claimant suffered a ligament injury in her shoulder and other soft tissue injuries; claimant began to experience nightmares and flashbacks, fear of driving, anxiety, nausea and poor sleep; claimant was referred to a clinical psychologist for treatment; insurer admitted liability for the claim; claimant’s post-traumatic stress disorder certified by Medical Assessor (MA) Samuell to be caused by the subject accident and as a non-threshold injury; MA Shen certified claimant suffers from post-traumatic stress disorder and persistent depressive disorder caused by subject accident; he assessed 17% whole person impairment (WPI); Review Panel makes same diagnosis but assesses 7% WPI; Review Panel gives lower rating for concentration, persistence and pace (2) than did MA Shen (4); Held – certificate revoked; no matters of principle. |
| DETERMINATIONS MADE: | CERTIFICATE 1. The Review Panel revokes the certificate dated 10 May 2023 and issues a new certificte determining that: (a) The following injuries caused by the motor accident give rise to a permanent impairment of 7% and IS NOT GREATER THAN 10%: (i) post-traumatic stress disorder, and (ii) Persistent Depressive Disorder. |
STATEMENT OF REASONS
INTRODUCTION
Cuc Thu Thi Lam (the claimant) was injured in a motor accident that occurred on 25 June 2019 at Cabramatta (the accident). The claimant was driving along Cabramatta Road with her husband in the front passenger seat and her two children in the back seat. The insured van reversed from a driveway at speed and collided with the passenger’s front side of the claimant’s vehicle. Both her airbags deployed. The collision caused the claimant’s vehicle to swing to the opposite side of the road into oncoming traffic. The claimant lost control of vehicle which mounted a kerb and collided with a fence. The claimant’s head struck the steering wheel. Emergency services personnel attended the scene. The claimant, her husband and children were conveyed to Liverpool Hospital by ambulance. The claimant did not seek treatment for herself as she was more concerned for her husband and children. The claimant began to experience back pain which worsened over the next few days. The claimant suffered a ligament injury in her shoulder and other soft tissue injuries. She began to experience nightmares and flashbacks, fear of driving, anxiety, nausea and poor sleep. The claimant was referred to a clinical psychologist for treatment.
QBE (the insurer) indemnifies the owner and/or the driver of the vehicle at-fault for liability to pay to the claimant any damages and/or statutory compensation entitlements under the Motor Accident Injuries Act 2017 (the MAI Act). The insurer admitted liability for the claim.
As there is a dispute between the parties about the degree of permanent impairment under Schedule 2, s 2(a) of the MAI Act, in relation to the claimant’s psychological condition, the claimant was seen by Medical Assessor Yu Tang Shen on 8 May 2023, who certified as follows:
“The following injuries caused by the motor accident give rise to a permanent impairment of 17% and IS GREATER THAN 10%:
· Post-traumatic stress disorder
· Persistent depressive disorder”.
Medical Assessor Shen made no adjustment for pre-existing/subsequent impairment, apportionment or treatment effects.
THE REVIEW
The insurer sought a review of Medical Assessor Shen’s certificate on the basis that it was incorrect in a material respect. The insurer brought the application within the time prescribed by s 7.26(10)(a) of the MAI Act and cl 34 of Procedural Direction PIC 7 (28 days).
The insurer submitted that Medical Assessor Shen failed to:
(a) actively engage with the substantial and clearly articulated arguments put forward by the parties;
(b) actively engage with the evidence and disclose the path of reasoning by which he reached his opinion in relation to his classification for adaptation, and
(c) actively engaged with the evidence and disclose the path of reasoning by which he reached his opinion in relation to his classification for concentration, persistence and phase.
The insurer made detailed submissions in relation to each of the three alleged errors.
The insurer’s application for review was opposed by the claimant. Detailed submissions were made in support of the proposition that there are no material errors in Medical Assessor Shen’s certificate and that the review application ought to be dismissed.
President’s delegate Sophie Jones issued a Determination of an Application for Review of a Medical Assessment on 24 July 2023 which stated the satisfaction of the President’s delegate that there is a reasonable cause to suspect that the medical assessment was incorrect in a material respect. The basis of the satisfaction of the President’s delegate was stated as follows:
“The insurer’s ground for review that the Assessor failed to disclose the path of reasoning by which he reached his opinion in relation to his classification for concentration, persistence and phase, satisfies me of reasonable cause to suspect that the medical assessment was incorrect in a material respect. I note that any difference in the assessment of this category would result in a change to the assessed WPI percentage and is therefore material. I am satisfied that ….. having regard to the particulars set out in the application.”
Therefore, pursuant to s 7.26 of the MAI Act, the application was accepted.
The Review Panel is to assess whole person impairment arising from Psychiatric Condition – post-traumatic stress disorder.
OTHER ASSESSMENTS
The claimant was seen by Medical Assessor Doron Samuell who certified on 25 May 2020 as follows:
The following injury caused by the motor accident:
is not a MINOR INJURY for the purposes of the Act.
- Post-Traumatic Stress Disorder
Medical Assessor Samuell details the psycho-social history and pre-accident history, the history of the motor accident, history of symptoms and treatment following the motor accident, as well as the current symptoms. Medical Assessor Samuell states that the claimant did not appear depressed. She asserted significant memory problem and there was no evidence of psychosis. He observed there were issues of consistency and that, at times, the claimant was implausibly vague.
Under the heading Diagnosis and reasons, Medica Assessor Samuell says that the claimant’s symptoms, as described at interview, satisfied the diagnosis of a post-traumatic stress disorder, caused by the subject accident, which is not a minor injury.
STATUTORY PROVISIONS
A medical assessment matter is determined in accordance with Division 7.5 of the MAI Act. The matter is determined at first instance by a Medical Assessor pursuant to s 7.20 of the MAI Act and, on review, pursuant to s 7.26 of the Act, by a Review Panel consisting of two Medical Assessors and a Member assigned to the Motor Accidents Division of the Personal Injury Commission (Commission).
Part 5 of the Personal Injury Commission Act 2020 (the PIC Act) enables the Personal Injury Commission (Commission) to make rules with respect to the practice and procedure before the Commission, including proceedings before a Panel, reviewing a decision of a Medical Assessor.[1]
[1] Section 41(2) of the PIC Act.
Rules 127 to 130 of the Personal Injury Commission Rules 2021 (the PIC Rules) are made pursuant to Part 5 of the PIC Act. A Review Panel determines how it conducts and determines the proceedings and may determine the proceedings solely based on the written Application.[2]
[2] Rule 128 of the PIC Rules.
The review of the medical assessment is by way of new assessment of all the matters with which the medical assessment is concerned.[3]
[3] Section 7.26(6) of the MAI Act.
All members of the Review Panel had no previous involvement with the claimant or with this matter.
MATERIAL BEFORE THE REVIEW PANEL
The claimant relied upon the following material which the Review Panel has considered:
(a) Reply submissions for the claimant dated 26 June 2023.
As to the first alleged material error, the claimant submits that Medical Assessor Shen detailed with some degree of specificity the psychological symptoms which flowed from the claimant’s injury and the impairments they have caused. It is said the Medical Assessor assessed the claimant’s current limitations from a psychological perspective and that there are relevantly no physical restrictions.
As to the second alleged material error, as to whether the claimant’s ability to care for her husband has been altered by her physical or psychiatric injuries, the claimant says there is no evidence suggesting that the claimant has sustained a physical restriction, as opposed to ongoing pain. The claimant says that Medical Assessor Shen clearly is of the opinion that the pain is causing or exacerbating the claimant’s psychological condition. The claimant notes that Medical Assessor Shen refers to the findings of each of Drs Rastogi, Keller and Rickard-Bell, together with his own assessment of the claimant, in coming to his conclusions.
The claimant submits that Medical Assessor Shen provided a compelling account as to how the claimant’s standard of care of her husband and children has been reduced post-accident and that no material error was shown.
As to the third alleged material error, the claimant submits that, in relation to worsened concentration and memory, the insurer’s contention that the Medical Assessor did not specify what the previous standard of the claimant’s memory was, is an attempt to create a non-issue. The claimant then details Medical Assessor Shen’s findings in relation to concentration and memory.(b) Complete whole person impairment (WPI) application comprising:
·Application for personal injury benefits;
·submissions;
·X-ray cervical spine and brain MRI;
·Certificates of Capacity;
·referral to Mr Nguyen;
·medical questionnaire completed by Mr Tran;
·report dated 20 September 2021 by Dr Richa Rastogi, consultant psychiatrist;
·Allied Health Recovery request dated 20 September 2019;
·Allied Health Recovery request dated 20 February 2020;
·Liverpool Hospital discharge referral dated 28 June 2019;
·X-ray lumbar spine dated 13 February 2020;
·McCabes’ letter dated 1 February 2022 not conceding entitlement to non-economic loss;
·Internal Review Certificate of Determination dated 11 February 2022;
·Infinity Medical Centre medical records dated 21 November 2022;
·ultrasound left shoulder dated 10 January 2023;
·X-ray cervical spine dated 20 March 2023;
·statement of claimant dated 10 June 2022, and
·certificate of Medical Assessor Doron Samuell dated 25 May 2020 (previously summarised).
Qualified medical experts reports
·report dated 20 September 2021 by Dr Richa Rastogi, consultant psychiatrist, to the claimant’s lawyers.
Dr Rastogi records that the claimant was born and raised in Vietnam. After finishing school, she worked as a seamstress. After arriving in Australia, the claimant worked as a dental assistant before having her children. The claimant is now the recipient of a carer’s pension as her husband suffers from Parkinsons disease. He is immobile and depends upon her for all activities of daily living.
Dr Rastogi states there is no known previous history of anxiety and depression. There is no history of illicit recreation drug use or alcohol abuse. There is no family history of mood disorder or drug and alcohol abuse.
Dr Rastogi assessed the claimant through a Telehealth session. He says she was a poor historian. She had limited comprehension and understanding of English. Her mood was anxious and depressed. Her affect was dysphoric and anxious. Dr Rastogi makes a diagnosis of post-traumatic stress disorder caused by the subject accident. Using the psychiatric impairment rating scale (PIRS), Dr Rastogi assessed 14% WPI. No adjustment is made for pre-existing impairment,·Report dated 18 November 2021 by Dr James Bodel, orthopaedic surgeon, to the claimant’s lawyers.
Dr Bodel summarises the claimant’s injuries as follows:
oclosed head injury;
oinjury to the neck;
oinjury to both shoulders;
oinjury to the back, both thoracolumbar and lumbosacral, and
opsychological sequelae.
Dr Bodel states that the claimant had a very significant psychological disturbance as a result of the accident and has been under the care of a posologist that is ongoing. He records that, for a very lengthy period of time, the claimant could not get back into the car, let alone drive, but she is now able to drive to take her children to and from school, but not much more. Her physical injury is mainly in the lower back but also in the neck and shoulders.
Under the heading Diagnosis, Dr Bodel says there is a very significant soft tissue whiplash associated disorder in the cervical spine, rotator cuff pathology clinically in the left shoulder and slight pathology in the right shoulder, a musculoligamentous injury to the lower part of the back, as well as the psychological sequelae. Dr Bodel considers the claimant’s functional capacity, her need for domestic assistance and treatment. Those matters are not relevant for the Review Panel’s consideration. Dr Bodel assessed 17% WPI (6% for left upper extremity, 5% for cervicothoracic spine, 5% for lumbosacral spine and 2% for right upper extremity).Treatment providers report
·Report dated 4 February 2020 by Huy Anh Nguyen, clinical and forensic psychologist, to Dr Albert Tran.
Ms Nguyen records that the claimant attended her initial assessment on 10 October 2019 when she presented with post-traumatic stress disorder with frequent panic attacks of moderate severity. The claimant reported problems with concentration and memory interfering with her daily functioning. With treatment, the claimant reported significant reduction of symptom severity. Ms Nguyen says that the claimant requires ongoing psychological treatment for the post-traumatic stress disorder and its traumatic memory desensitisation.
·Report by Dr Hoang, physiotherapist, to Dr Tran.
Initial assessment was conducted on 2 September 2019. Dr Hoang says the Impact of Event Scale was 61/75, indicating that the claimant might have had signs and symptoms of post-traumatic stress disorder. Dr Hoang states that the claimant had Whiplash Associated Disorder Grade II with significant impacts on emotional and psychological aspects.
The insurer relied upon the following material which the Review Panel has considered:
(a) Insurer’s review application submissions dated 5 June 2023
First material error:
Failure to engage with the substantial and clearly articulated arguments put forward by the parties.
The insurer submits that Medical Assessor Shen did not engage with the clearly articulated arguments in the partes’ submissions, beyond simply acknowledging that the claimant submits that her injuries exceed 10% and the insurer submits they do not. The insurer submits that the Medical Assessor failed to obtain a history of the claimant’s pre-accident lifestyle, activities and habits, to assess the extent to which these have changed, as a result of the psychiatric injury. Particularly is that so, in the insurer’s submission, in relation to the claimant’s pre-accident and post-accident capacity to care for her children and husband.
Second material error:
Failure to actively engage with the evidence and disclose the path of reasoning by which he reached his opinion in relation to his classification for adaptation.
The insurer submits that Medical Assessor Shen failed to provide any evidence that he ascertained the claimant’s pre-accident level of functioning and assess how that changed as a result of the psychiatric injury.
Third material error:
Failure to actively engage with the evidence and disclose the path of reasoning by which he reached his opinion in relation to his classification for concentration, persistence and pace.
In the insurer’s submission, Medical Assessor Shen did not specify the previous standard of the claimant’s concentration and memory, with reference to her pre-accident activities, habits and lifestyle, in accordance with cl 6.220 of the Motor Accident Guideline. It is submitted that Medical Assessor Shen did not query or specify what the claimant’s concentration and memory was previously and whether it in fact was worse than prior to the accident.(b) Commission certificate of Medical Assessor Yu Tang Shen dated 10 May 2023 (previously summarised).
(c) Insurer’s submissions in reply dated 19 April 2022 relating to WPI.
In relation to psychiatric injuries, the insurer relies on the opinion of Dr Rikard-Bell, who diagnosed the claimant as having chronic Adjustment Disorder, secondary to chronic pain attracting 7% WPI. That is contrasted to the opinion of the claimant’s qualified psychiatric expert, Dr Rastogi, who diagnosed the claimant as having post-traumatic stress disorder with 14% WPI. Their assessment differed in the categories of Travel and Adaptation on the PIRS scale. The insurer submits that Dr Rastogi has not clarified whether the assistance required for household tasks is due to the claimant’s psychological symptoms, or due to physical limitations stemming from the alleged physical injuries. The insurer submits that the opinion of Dr Rikard-Bell should be preferred to the opinion of Dr Rastogi as Dr Rikard-Bell’s assessment includes a more extensive and more recent recount of the subjective history of the claimant’s psychological symptoms.
(d) Report of Dr Rikard-Bell date 8 February 2022 to the insurer’s lawyers (see previously).
(e) Report of Dr Andrew Keller, occupational physician, to the insurer’s lawyers.
Dr Keller reports a normal physical examination. He gives a diagnosis of a soft tissue injury to the lumbar spine. Dr Keller states there is no evidence of any other injures. In his opinion, it is likely that the claimant recovered from her physical injuries within three months of the accident. He says there is no evidence of any lasting long-term or ongoing physical injuries. He also opines there are no persisting physical diagnoses that can be assessed for WPI in accordance with the Guides or American Medical Association Guides to the Evaluation of Permanent Impairment Fourth Edition (AMA 4).
(f) Clinical records of Dr Phu Hoang;
(g) Clinical records of Our Medical Home;
(h) Internal review decision of QBE;
(i) Clinical records of Regents Park Medical Centre;
(j) Email from PNDP Health Centre dated 28 March 2020;
(k) Claimant’s application for internal review dates 25 January 2022;
EXAMINATION REPORT
The examination report of Medical Assessor Baker and Medical Assessor Chew is as follows:
“Cuc Thu Thi Lam
Assessors Chew and Baker
All Review Panel members confirmed they had no previous involvement with this matter or the above-injured person. All Review Panel members also confirmed there was no conflict or any other reason they could not approach this review with an open mind.REASONS
1. Who attended the assessment
The claimant was examined using Microsoft Teams videoconferencing for approximately 100 minutes. The claimant was unaccompanied in her home. She was identified by NSW Drivers Licence. A Vietnamese interpreter appointed by the Personal Injury Commission attended and was present for the entire assessment.
BACKGROUND HISTORY
The claimant was born in Vietnam, in 1974. She reported that she had not suffered from any prior mental illness before the motor accident. She said she enjoyed her childhood. She was not a victim of any trauma or abuse. The claimant’s father died when the claimant was aged 10 years. She said her father drank alcohol heavily. She has 3 younger brothers and her mother lives in Vietnam. She was educated to Year 10 in Vietnam. She trained to work as a dressmaker and a seamstress. In 1994, worked in her own small tailoring business. The business closed in Vietnam in January 2004.
The claimant married her husband in 2004 in Vietnam. The claimant and her husband entered Australia later in 2004. She is an Australian citizen. Prior to the motor accident she would telephone and talk to her mother in Vietnam about once every week to fortnight.
After her arrival to Australia, she worked for a few months as a dental assistant in Cabramatta. In 2006 she gave birth to her son now aged 18 years. The family moved to Perth Western Australia in 2009 and returned to settle in Cabramatta in 2009. She gave birth to her daughter in 2010.
The claimant lives in Cabramatta with her husband and 2 children. They have a
14-year-old in Year 9 and an 18-year-old in HSC year.
The claimant’s husband was first diagnosed with Parkinson’ Disease in 2011. He continued to work with this condition until the condition was to be disabling. In about 2016 the claimant applied and received the carer’s pension for her husband. Her husband is in receipt of the Disability Support Pension for Parkinsons Disease.
The claimant’s husband was diagnosed with Parkinsons Disease when their eldest child was in primary school. His illness has progressed, and his mobility is poor. He requires a walking stick. She states that he has no cognitive difficulties.
The claimant reported that prior to the motor accident she would assist her husband with showering, dressing, transporting him to appointments and cutting up his food when necessary.
Prior to the 25 June 2019 motor accident that claimant was a stay-at-home mother and did not require assistance in caring for her husband. Since the motor accident, over the last few years her husband has had NDIS support which has recently increased to 4 hours per day, 6 days a week of face-to-face care.Past Medical History
The claimant has Hepatitis B and sees the specialist annually for follow up. She reports no symptoms or ongoing issues from this. She is unsure how she contracted the virus. She did not report suffering from any complications affecting her liver due to this infection.
The general medical record shows the claimant being diagnosed with Scoliosis of her back in 2019. She was prescribed Paracetamol Osteo 665mg, two tablets three time daily for back pain. She also suffered from Gastro-Oesophageal Reflux Disease in 2020 and was prescribed Somac 20mg for this condition.
The reported reading Buddhist text and she did not drink alcohol or smoke tobacco. She was not allergic to any substances.Psychiatric History Before the 25 June 2019 Motor Accident.
The claimant denied mental health problems before the subject motor accident.
The claimant did not report any complications of pregnancy or postnatal depression. She did not report suffering from any prior psychiatric or psychological injury. She said there was no family history of mental illness in her family of origin.Pre-Accident Functioning
The claimant said that before the subject motor accident, she was able to function independently and as carer without additional assistance for her husband who has Parkinson’s Disease. She performed no other paid or voluntary work. She was independent with self-care and personal hygiene. The claimant was able to purchase groceries and cook meals for her family. She was able to cook more elaborate meals. She could perform all the family laundry. She could clean the shower, bathroom and clean the floors without impairment.
The claimant and her family attended temple every Sunday. She enjoyed sharing and celebrated Moon Festival with her family and friendship circle. She would meet her friends at temple or their houses or have friends back at her house, often prior to the subject motor accident.
The claimant said she was able to travel independently before the subject motor accident. She would drive her daughter to school in Canley Vale and son to the train station.
The claimant said she was able to read her Buddhist text without difficulty prior to the subject motor accident. She said she could cook more elaborate meals prior to the motor accident. She assisted her husband with the family’s utility bills and banking. She did not report having any difficulty with these complex tasks prior to the accident.
The claimant had not worked since starting her family. Since having children her primary duties were initially home duties and care of her children. When her husband became unwell her primary duties within the family home increased. Due to her husband’s progressive loss of mobility her home duties became more complex and time consuming. She had to also continue to care for her children who are now 18 and 14 years of age.History of the Motor Accident
The claimant reported that she was the seat belted driver of a Toyota Tarago with her husband and 2 children. Her husband was seated in the front passenger seat and her children were seated in the rear seats. She was driving straight in a 60km/hr zone. She estimated her speed as less than 60 km/hr. A van reversed out on to the road and hit the front left of her vehicle. The claimant’s vehicle was pushed into the next lane. She tried to steer the vehicle back into the original lane however lost control of her vehicle. Her vehicle hit the fence of a house. Her vehicle’s airbags deployed. She recalled being panicked and the children screaming. She recalled that it felt like a big piece of concrete had fallen onto her body. She feared that she was seriously injured.
The claimant said that there was a police officer who came to help and called emergency services. She recalled her son screaming in pain. The scene was attended by police, ambulance and fire. The claimant and her family were transferred to Liverpool Hospital. She said that while she did have some pain, she was more concerned about the children and told the hospital not to examine her but look after her children. She said that her children and husband did not sustain any significant injuries. The claimant said neither her husband nor her children suffer from longer term issues arising from the accident.History of Symptoms Following the Motor Accident
The claimant reported that she experienced ongoing pain in her back, shoulder and neck and represented at Liverpool Hospital 2 days later. She was diagnosed with soft tissue injures. She said that the pain has improved gradually since the accident however is still present in her back, shoulder and neck. She said that sometimes the pain gave her a headache.
The claimant was avoidant of talking about the psychological injury she sustained in the motor accident, at the assessment. She would show anxiety and state she could not remember. When asked why she could not remember she said, ‘I can’t talk about it, I get upset’.
Avoidance of or making effort to avoid distressing memories, thoughts or feelings about the motor accident is consistent with posttraumatic stress disorder criterion C.1. This type of avoidance is common in claimant’s suffering from posttraumatic stress disorder. The claimant attended her general medical practitioner, from the handwritten record on page 59 of the Panel Bundle forwarded with the referral, other symptoms consistent with posttraumatic stress disorder are documented:·Intrusive memories of the children screaming in the accident. The claimant confirmed at the assessment that the distressing memory was her son, screaming in pain.
·Sleep disturbance (insomnia).
·When driving the car the claimant ‘still has shock and panic attacks’
The claimant was documented as having the following symptoms in the certificate under review:
·She would become agitated when reminded of the accident.
·Intrusive nightmares of the accident.
·Constant feelings of shame.
·Increased irritable and verbal aggression.
·She feels she cannot trust anyone.
·Reduced concentration.
The claimant also reported at the assessment that she has ‘no energy’ and is ‘tired’ and easily fatigued. She reports poor sleep. She reported that a few weeks after the accident and ongoing for months she would wake up with a big bang / nightmare with palpitations and felt exhausted. She reported that she would startle easily with loud noises. She reported that she was more fearful and scared driving.
The claimant reported symptoms of persistent depressive disorder that included the following:·Onset of depression first documented by her general practitioner on 22 July 2019 page 199 of the Panel Bundle about one month after the motor accident.
·The claimant was referred to a psychologist for treatment of her depressed mood that had not resolved since onset.
·She also had loss of her appetite.
·Poor sleep with insomnia.
·Low energy.
·Poor concentration.
·Feeling more hopeless, with thoughts of death without suicidal intent.
The claimant described her symptoms of posttraumatic stress disorder and persistent depressive disorder had not resolved or remitted prior to the assessment. She reported that she becomes more agitated and distressed by having to talk about the motor accident, that happened in 2019.
History of Treatment Following the Motor Accident
The claimant engaged in a few sessions of psychological therapy after the accident. She couldn’t recall exactly when or for how many sessions she completed. She reported that she did not find the psychological treatment helpful. She lost interest in psychological treatment and ceased attending the psychologist. She reported that she was not interested in taking medication. She said her prescribing general practitioner encouraged her to commence evidence-based antidepressant medication. She took mirtazapine 15mg occasionally to help with sleep. She said that sometimes she would use this for several nights in a row, then would not use it for several weeks.
The claimant reported that she found listening to the Buddhist scripture and meditating helpful. She preferred this tradition method of managing her ongoing psychological injury.
The claimant was not refereed to a psychiatrist. She was not admitted to psychiatric hospital. She had not received any other psychiatric treatment for her psychological injury.Details of Any Relevant Injuries or Conditions Sustained Since the Motor Accident
The claimant reported ongoing progression of her husband’s Parkinson’s Disease. She did not report any other injuries, conditions or stressors.
The claimant reported that at the time of this assessment, her husband had changed from relying on her for his full support prior to the motor accident to utilising 4 hours per day, 6 days per week support from his NDIS service providers. The service providers enter the home 6 days per week to assist the claimant’s husband since the motor accident.
The claimant reported that her back, neck and shoulder pain would restrict her capacity to lift or perform heavy physical care for her husband,Current Symptoms
The claimant continues to experience the following symptoms consistent with persistent depressive disorder:
·Tearfulness with sadness.
·Recurrent thoughts of hopelessness.
·A depressed and low mood.
·Increased tiredness with rapid onset of fatigue.
·Decreased engagement in social activities.
·Poorer concentration.
·Poor appetite.
The claimant continues to experience the following symptoms consistent with posttraumatic stress disorder:
·Continued startle reaction to unexpected noise. and ongoing pain.
·Intrusive memories of the children screaming in the accident. The claimant confirmed at the assessment that the distressing memory was her son, screaming in pain.
·Sleep disturbance (insomnia).
·When driving the car the claimant ‘still has shock and panic attacks’
·She would become agitated when reminded of the accident.
·Intrusive nightmares of the accident.
·Constant feelings of shame.
·Increased irritable and verbal aggression.
·She feels she cannot trust anyone.
·Reduced concentration.
The claimant reported she continued to experience pain in her back, shoulders and arms. She said this restricted the heavy psychical care she could provide to her husband.
Current and Proposed Treatment
The claimant said at the assessment that she is not engaged in any formal psychological or psychiatric treatment and there are no plans for same. She takes the antidepressant mirtazapine 15mg at night was beneficial and she used this treatment to assist with her poor sleep and insomnia.
Mental State Examination
The claimant’s mental state examination was documented as follows:
·Grooming: the claimant was reasonably neatly groomed.
·Clothes: the claimant wore tidy casual clothing.
·Activity: she sat throughout the assessment. There was some appropriate gesticulation and movement with her vocal expression.
·Movements: no tics or vocalisations were reported or observed.
·Aggression: no deliberate acts of aggression towards peers and property was reported.
·Impulse control: the claimant showed no obvious deficits
·Interaction: the claimant was appropriately polite throughout interview
·Her facial expression: was appropriate to verbal content.
·Eye contact: was good throughout the videoconference
·Facial Expression: tearful and emotional at times throughout the assessment as she spoke about distressing memories about the motor accident.
·Language:she spoke in Vietnamese throughout the assessment
·Affect: Anxious mood, consistent with thought content. The claimant showed some variation in emotion and was distressed at times. There was no evidence of cyclic mood changes.
·Suicidal ideation was not present.
·Phobias: none reported.
·Obsessions: none observed or reported.
·Dissociative: no behaviour observed or reported.
·Preoccupations: nil.
·Perceptions: no anomalies reported.
·Sensorium: clear.
·Concentration: The claimant did repeat the questions to herself on a number of occasions and struggled to find the words to describe her emotions and experience of the motor accident. She attributed reduced concentration and increased difficulties with complex tasks. The claimant was able to participate at a reduced pace during the 100-minute assessment.
·Abstraction: no issues were noted.
Current Functioning
Self-care and personal hygieneThe claimant prepares breakfast for herself and the family prior to school drop off in the mornings. She often goes to the shops to buy groceries after dropping her children off. She can now only prepare and cook simple meals at homes. She often feelings too tired and low in her energy to cook evening meals for her family and they are now more reliant of takeaway food. The claimant is independent with her activities of daily living. She does less cleaning and laundry within the family home. Her motivation varies because of her persistently depressed mood, and thoughts of hopelessness. The claimant was assessed as having a Class 2 mild impairment.
Social and recreational activities
The claimant’s husband generally accompanies her to the train station in the mornings for school drop off. Afterwards if she is not feeling too tired and fatigued, they may go to the park for some exercise. She rarely attends Temple and has lost contact with her friends. The claimant rarely goes to social events, such as Moon Festival as she would have prior to the motor accident. She does not engage with the Temple’s social activities as she would have before the accident. She only goes out to participate in social and recreational activities with a support person such as her husband. The claimant was assessed as having a Class 3 moderate impairment.
Travel
The claimant can drive her children to the train station which is about 10 minutes’ drive from the family home. The claimant on school days will also pick them up from the train station after school. The claimant can drive in familiar areas and does so regularly to the train station and local shops. The claimant was assessed as having a Class 2 mild impairment.
Social functioning
The claimant maintains a strained relationship with her husband. Whilst part of the difficulty is caused by the claimant’s husband’s declining physical health. The claimant is not able to have enough energy and interest to emotionally support her husband as she had prior to the motor accident. There has been no separation or domestic violence. The children remain in her care. She has lost some friendships.
She had little contact with her friends. She speaks to her mother weekly to fortnightly on the phone. The claimant has lost interest in attending social events as she becomes agitated and worries about how she is to explain her circumstances to others. The claimant was assessed as having a Class 2 mild impairment.
Concentration, persistence and pace
The claimant reported that she is unable to watch more than about 30 of video clips. She could not concentrate to follow the storyline of a movie that was more than 40 minutes. She reported her concentration would fatigue and she would stop concentrating. The pace of the assessment was slow, and she required prompting and encouragement to remain on topic. The claimant was able to listen to Buddhist text reading and perform some mediation.
The claimant was assessed as having a Class 2 mild impairment.
Adaptation
The claimant provided all the care for her husband prior to the motor accident. The claimant’s husband now requires much more care, and he receives 4 hours per day, 6 days per week care. The claimant suffers from low energy, loss of interest and increased fatigue due to the symptoms of her psychological injury. The claimant was assessed as been able to perform less than 20 hours per week in a similar role which she performed prior to the motor accident, due to the symptoms of her psychological injury alone.
The claimant was assessed as having a Class 3 moderate impairment.
Comment on consistency
The history obtained was reliable and consistent. We have reviewed the documentation provided to the Personal Injury Commission and found significant inconsistencies in the reports provided when compared with the history and examination obtained from the claimant at this assessment.
The claimant prominently demonstrated a core symptom of posttraumatic stress disorder, C.1. Avoidance of or efforts to avoid distressing memories, thoughts or feelings associated with the motor accident. This required the assessment of the claimant to progress slowly and rapport to be rebuilt throughout the assessment. The rebuilding of rapport enabled the claimant to provide more detailed and consistent information with the forwarded documents.
Review Panel Deliberations
InjuriesIn considering the symptoms the Review Panel agreed that following the motor accident the claimant has developed Post Traumatic Stress Disorder and Persistent Depressive Disorder.
Stabilisation
The Review Panel considered stabilisation and regarded the Claimant’s psychiatric disorders from the accident had stabilised with impairment unlikely to change by more than 3% whole person impairment in the next year with or without treatment.
DETERMINATIONS
DSM-5-TR Psychiatric Diagnosis
| Diagnosis: | The panel concurs with the previous psychiatric diagnoses made: Post Traumatic Stress Disorder DSM-5-TR F43.10 Criterion A: Is met as the claimant directly experiencing the motor accident fear that she would be seriously injured. She explained the motor accident ‘felt like a big piece of concrete had fallen onto her body’. Criterion B: Is met as the claimant reports recurrent intrusive memories and nightmares of the motor accident. The content of these nightmares and intrusive memories where she re-experiences hearing her son screaming in pain from the back seat of the car at the time of the motor accident. Criterion C: Is met as the claimant was observed making efforts of avoidance of memories, thoughts and feelings associated with the accident as evidenced by the claimant making efforts to avoid distressing memories, thought and feelings that involve the motor accident, during the assessment. Criterion D: Is met as the claimant has a persistent negative emotional state, with diminished participation and interest in significant activities that she would have participated in before the motor accident such as attending Moon Festival, attending invitations to friends’ homes and entertaining at her home. Criterion E: Is met as the claimant reports exaggerated startle response to unexpected noise, ongoing difficulty with her concentration Criterion F: Is met as the claimant first experienced her Criterion A stressor in June 2019 which is a duration greater than 1 month to the date of this assessment. Criterion G: Is met as the claimant was observed to be clinically significantly distress with her becoming tearful and irritable during the assessment as well as reporting impairment in all aspects of her psychological function as demonstrated by her reduced capacity to engage in recreational functioning and other impairment areas of psychiatric function. Criterion H: Is met as the claimant does not use alcohol or illicit substances and had no another medical condition that could explain her condition. Persistent Depressive Disorder DSM-5-TR F 34.1 Criterion A: Is met as the claimant was first documented as suffering from depression by her general practitioner about one month after the motor accident in July 2019. The claimant continues to experience a persistent depressed mood most of the day for most days since the motor accident a duration that is over 2 years. Criterion B: Is met as the claimant reports depressive symptoms of insomnia, low energy / fatigue and poor concentration. Criterion C: Is met as the claimant has no evidence of a break in symptoms for longer than 2 months and continues to use antidepressant medication as well as tradition treatment to manage her psychological injury. Criterion D: This criterion is not met. The claimant does not met criteria for a major depressive disorder was defined by DSM-5-TR at this assessment. The criterion is not essential for the diagnosis of a persistent depressive disorder. Criterion E: Is met, as the claimant has no psychiatric history of manic or hypomanic episode and does not meet criteria for cyclothymic disorder Criterion F: Is met, as the claimant has no psychiatric history of a psychotic disorder. Criterion G: Is met as the claimant does not use alcohol or illicit substances and had no another medical condition that could explain her condition. Criterion H: Is met as the claimant is clinically significantly distress with her incapacity to care for her husband and family as she had prior to the motor accident in June 2019. |
Causation and reasons
| Causation: | The claimant had no history of psychiatric or psychological conditions prior to the subject motor accident. The claimant’s history of the subject motor accident could have caused the symptoms reported by the claimant. The psychiatric symptoms can define a psychological injury using DSM-5-TR criteria. The definable DSM-5-TR conditions, Post Traumatic Stress Disorder DSM-5-TR F43.10 and Persistent Depressive Disorder DSM-5-TR F 34.1 could fully define the claimant’s psychological injury. |
The Review Panel considered the following psychiatric injuries result in AN ASSESSABLE PERMANENT IMPAIRMENT:
| Diagnosis: | Post Traumatic Stress Disorder DSM-5-TR F43.10 Persistent Depressive Disorder DSM-5-TR F 34.1 |
The degree of whole person permanent impairment of the injuries caused by the accident was calculated as follows: -
Current permanent impairment
Psychiatric diagnoses Post Traumatic Stress Disorder DSM-5-TR F43.10
Persistent Depressive Disorder DSM-5-TR F 34.1
Psychiatric treatment Description The claimant does attend her general practitioner for treatment. The claimant is prescribed an evidence-based antidepressant mirtazapine 15mg at night. The claimant reports benefit from this medication. She does use traditional and culturally appropriate Buddhist readings and meditation to assist her with mindfulness and the psychological symptoms of the motor accident. The claimant had attended a clinical psychologist for psychological treatment. Category Class Reason for decision Self-care and personal hygiene 2 The claimant prepares breakfast for herself and the family prior to school drop off in the mornings. She often goes to the shops to buy groceries after dropping her children off. She can now only prepare and cook simple meals at homes. She often feels too tired and low in her energy to cook evening meals for her family and they are now more reliant of takeaway food. The claimant is independent with her activities of daily living. She does less cleaning and laundry within the family home. Her motivation varies because of her persistently depressed mood, and thoughts of hopelessness. Social and recreational activities 3 The claimant’s husband generally accompanies her to the train station in the mornings for school drop off. Afterwards if she is not feeling too tired and fatigued, they may go to the park for some exercise. She rarely attends Temple and has lost contact with her friends. The claimant rarely goes to social events, such as Moon Festival as she would have prior to the motor accident. She does not engage with the Temple’s social activities as she would have before the accident. She only goes out to participate in social and recreational activities with a support person such as her husband. Travel 2 The claimant can drive her children to the train station which is about 10 minutes’ drive from the family home. The claimant on school days will also pick them up from the train station after school. The claimant can drive in familiar areas and does so regularly to the train station and local shops. Social functioning 2 The claimant maintains a strained relationship with her husband. The claimant is not able to have enough energy and interest to emotionally support her husband as she had prior to the motor accident. There has been no separation or domestic violence. The children remain in her care. She has lost some friendships.
She has little contact with her friends. She speaks to her mother weekly to fortnightly on the phone. The claimant has lost interest in attending social events as she becomes agitated and worries about how she is to explain her circumstances to others.Concentration, persistence and pace 2 The claimant reported that she is unable to watch more than about 30 of video clips. She could not concentrate to follow the storyline of a movie that was more than 40 minutes. She reported her concentration would fatigue and she would stop concentrating. The pace of the assessment was slow, and she required prompting and encouragement to remain on topic. The claimant was able to listen to Buddhist text reading and perform some mediation. Adaptation 3 The claimant provided all the care for her husband prior to the motor accident. The claimant’s husband now requires much more care, and he receives 4 hours per day, 6 days per week care. The claimant suffers from low energy, loss of interest and increased fatigue due to the symptoms of her psychological injury. The claimant was assessed as been able to perform less than 20 hours per week in a similar role which she performed prior to the motor accident, due to the symptoms of her psychological injury alone. * %WPI = percentage whole person impairment
There is no pre-existing condition. For the sereasons there is no apportionment of the assessed whole person impairment scored as 7%WPI.
Current % whole person impairment
7%
Apportionment
Adjustment for the effects of treatment
The claimant reported inconsistent use of her antidepressant medication. The was no treatment effects from this psychiatric medication as reportedly used by the claimant. The claimant stopped psychological treatment as she reported ‘no benefit’. For these reasons there is no adjustment for treatment effects.”
FINDINGS
The Review Panel conducts a new assessment of all the matters with which the medical assessment is concerned.[4] The Review Panel adopts the extensive findings and reasons in the joint examination report of the two Medical Assessors.
[4] Section 7.26(6) of the Act.
The Review Panel is not required to choose between competing medical opinions and is required to form its own opinion.[5] The Medical Assessors have explained the bases for their assessments which are different from those provided by other specialists in some respects. The Review Panel made the same diagnosis as Medical Assessor Shen but assigned a lower rating (2) for Concentration, persistence and pace than did Medical Assessor Shen (4). The medical assessment of permanent impairment is made at the time of the examination. In that respect, the previous assessments are somewhat outdated, and do not reflect current symptomatology.
[5] Insurance Australia Group Limited v Keen [2021] NSWCA 287 and Insurance Australia Limited v March [2022] NSWCA 31
CONCLUSIONS
For these reasons, the Review Panel concludes that the certificate issued by Medical Assessor Shen on 10 May 2023 should be revoked. The new certificate appears at the commencement of these reasons.
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